Darshan Singh vs State of Haryana

T.P.S. Mann, J.—The Appellant has been sentenced to undergo RI for four years and to pay a fine of Rs. 500/- u/s 376 IPC by Additional

Sessions Judge, Kurukshetra vide judgment and order dated 14.7.1994. In default of payment of fine, the Appellant was sentenced to undergo

further RI for six months. Aggrieved by the same, the Appellant has filed the present appeal.

The prosecutrix, who was aged about 8 years, was subjected to sexual intercourse by the Appellant on 1.3.1993 at about 12.00 noon. The

prosecutrix had accompanied her mother to the field of Shera of their village for bringing grass from there after cutting the same. At that time, the

Appellant was also cutting the grass from a nearby field. The prosecutrix helped her mother to place the bundle of grass on her head and thereafter

they started moving towards their house. At that time, the Appellant came to the mother of the prosecutrix and asked her to send her daughter to

help him in picking up his grass bundle. The prosecutrix was, accordingly, sent by her mother with the Appellant, who herself went to her house.

About an hour later, the prosecutrix reached her house weeping and at that time her salwar was found besmeared with blood. On being asked by

her mother, the prosecutrix told her that Appellant had committed rape upon her.

After calling her husband, the mother of the prosecutrix accompanied him as well as the prosecutrix to Police Station Pehowa, where FIR was

lodged.

The prosecutrix was medico-legally examined by Dr. Sunita Jain PW-9 on 1.3.1993. The accused was arrested on 4.3.1993 and on the same

day was subjected to medico-legal examination by Dr. Rajan Kohli, PW-6, who found him sexually fit.

After the completion of the investigation, challan was presented in the Court. The commitment of the case followed whereafter Additional

Sessions Judge, Kurukshetra framed charge u/s 376 IPC against the Appellant on 15.5.1993, but he pleaded not guilty and claimed trial.

In support of its case, the prosecution examined HC Zile Singh as PW-1, Lakhmi Chand, UGC as PW-2, Hakam Singh, Asstt., CMO Office,

Kurukshetra as PW-3, Balbir Singh, Patwari as PW-4, HC Pritam Singh as PW-5, Dr. Rajani Kohli as PW-6, Sukhdevi, mother of the

prosecutrix as PW-7, SI Gian Singh as PW-8, Dr. Sunita Jain as PW-9, prosecutrix herself as PW-10 and ASI Jagdish Chander as PW-11.

Reports of Forensic Science Laboratory (for short `FSL'') Ex. PL and PL/1 were tendered into evidence and the prosecution case was

thereafter closed. When the accused was examined u/s 313 Cr.P.C., he denied the correctness of the prosecution case and stated that he was

falsely implicated therein.

In his defence, the Appellant produced Hukam Chand, teacher of Government High School, Bandhani as DW-1, who proved the certificate Ex.

DB, as per which the death of birth of the Appellant was entered in the records as 2.6.1976.

The trial Court believed the prosecution case and convicted the Appellant u/s 376 IPC. However, in view of the young age of the Appellant

being 16 years and nine months on the date of the occurrence, the proviso to Section 376(1) Code of Criminal Procedure was pressed into

service to award RI for four years and a fine of Rs. 500/-, instead of awarding minimum sentence of seven years.

I have heard learned Counsel for the parties and gone through the evidence led by them and the documents proved on the record.

Though, according to Dr. Rajan Kohli PW-6, there was no injury on the male organ of the Appellant but that by itself is not sufficient to hold

that the Appellant did not indulge in sexual intercourse with the prosecutrix. Dr. Rajan Kohli PW-6 had stated that he did not find any injury on the

glans of the accused. However, in reply to Court''s question as to whether it was possible for the expected injury on the glans of the male organ to

heal within three days time, he replied that minor injury shall heal within that period. The occurrence had taken place on 1.3.1993 at about 12.00

noon. The accused was arrested on 4.3.1993 and thereafter subjected to medico-legal examination at 6.00 p.m. By that time, more than 72 hours

had elapsed from the time of the sexual assault committed by the Appellant. In case, there was any minor injury on the glans of the male organ of

the Appellant, it could very well heal up within that period.

Mere absence of human semen on the vaginal smear, as per the reports Ex. PL and PL/1 of FSL again does not belie the prosecution version.

This also pales into insignificance once we refer to the medical examination of the prosecutrix. The doctor had found that the labia minora, which

was not fully developed, was congested. Hymen was found ruptured. On the posterior vaginal wall, there was a tear of the size of 1 cm x 1 cm

near the introitus from which fresh bleeding was coming out. All this shows that the prosecutrix had been sexually assaulted.

There is no dispute regarding the age of the prosecutrix. According to Hakam Singh PW-3, date of birth of the prosecutrix was entered in the

records as 22.5.1983. She was, thus, nine years and nine months of age on the date of the occurrence.

The statements made by prosecutrix, while appearing as PW-10 and her mother as PW-7, are categorical and consistent to point an accusing

finger towards the Appellant of having subjected the prosecutrix to sexual intercourse. Inspite of lengthy cross-examination conducted by the

defence, no material could be brought out from which it could be inferred that the said two witnesses were not deposing truthfully. There was also

no material on the file to show that the prosecutrix and her mother could falsely implicate the accused. In view of the above, it is held that the

Appellant has been rightly convicted by the trial Court u/s 376 IPC.

Coming to the question of sentence, it has to be borne in mind that the prosecutrix was nine years and nine months old on the date of the

occurrence, her date of birth being 22.5.1983. As per the provisions of Section 376(2)(f) , whoever commits rape on a woman when she is under

12 years of age, is required to be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life,

besides requiring the offender to pay fine. Inspite of the said specific provision providing for awarding of RI for a term not less than ten years, the

trial Court dealt with the case as if Appellant was to be sentenced for an offence of rape simpliciter u/s 376(1) IPC instead of the aggravated form.

However, at the same time the Court could award lesser than the minimum sentence.

Keeping in view of the young age of the convict on the date of the occurrence i.e. 16 years and 9 months, he being a student of 9th class

having no beard and moustache and his parents being very old and poor, the trial Court found them to be adequate and special reasons for

imposing a sentence of imprisonment for a term of less than seven years.

However, as stated above, the minimum sentence which could be awarded to the Appellant was RI for ten years as the case was covered u/s

376(2)(f) IPC and not u/s 376(1) IPC because the prosecutrix was under 12 years of age

The Appellant has been facing the agony of criminal prosecution for the last more than 14 years. He remained in jail as an under-trial upto

3.7.1993, when he was granted the concession of bail by Additional Sessions Judge, Kurukshetra. He was again taken into custody on 14.7.1994

after having been sentenced by the trial Court. He filed the present appeal in which he was ordered to be released on bail by this Court vide order

dated 8.11.1994.

In view of the above, I find adequate and special reasons for imposing a sentence of imprisonment upon the Appellant for a term of less than

ten years. The sentence of RI for four years awarded by the trial Court is commensurate with the offence committed by the Appellant. There is no

scope for awarding any further lesser sentence.

Resultantly, the conviction and sentence of the Appellant as recorded by the trial Court are maintained and the appeal is dismissed.